AHSAN & AHSAN - [2019] FamCAFC 244

FAMILY COURT OF AUSTRALIA

AHSAN & AHSAN

[2019] FamCAFC 244

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Application for reinstatement of an appeal against property and parenting orders – Where there is a reasonable explanation for the applicant’s failure to file the draft index to the appeal book in time – Where the appeal is so devoid of merit that it would be futile to order the reinstatement of it – Application for reinstatement dismissed – Orders made for written submissions as to costs.

Family Law Act 1975 (Cth) ss 60CC, 117(2A)

Family Law Rules 2004 (Cth) rr 11.02, 22.13, 22.44

Bahonko v Sterjov (2008) 166 FCR 415; [2008] FCAFC 30
Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148
Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30
House & The King (1936) 55 CLR 499; [1936] HCA 40
Jackamarra v Krakouer (1998) 195 CLR 516; [1998] HCA 27
Jess v Scott (1986) 12 FCR 187; [1986] FCA 365
Pollard & RRR Corporation Pty Ltd [2009] NSWCA 110
Tate & Tate (2000) FLC 93-047; [2000] FamCA 1040

APPLICANT:

Mr Ahsan

RESPONDENT:

Ms Ahsan

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

FILE NUMBER:

PAC

2493

2016

APPEAL NUMBER:

2019

DATE DELIVERED:

11 December 2019

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Aldridge J

HEARING DATE:

3 & 10 December 2019

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

2 September 2019

LOWER COURT MNC:

[2019] FamCA 616

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Sansom SC

SOLICITOR FOR THE APPLICANT:

Abrams Turner Whelan Family Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Ahmad

SOLICITOR FOR THE RESPONDENT:

Integrated Law Group

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

Orders made on 11 December 2019

The Application in an Appeal filed 31 October 2019 for reinstatement of appeal EA 95 of 2019 be dismissed.
The respondent file and serve written submissions and any evidence on the issue of costs on or before 17 January 2020.
The applicant file and serve written submissions and any evidence on the issue of costs on or before 7 February 2020.
The respondent may file and serve any submissions in reply by 14 February 2020.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Ahsan & Ahsan has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT
SYDNEY

Appeal Number: EA 95 of 2019
File Number: PAC 2493 of 2016

Mr Ahsan

Applicant

and

Ms Ahsan

Respondent

EX TEMPORE REASONS FOR JUDGMENT

Introduction

By an Application in an Appeal filed on 31 October 2019, Mr Ahsan (“the applicant”) seeks reinstatement of his appeal against parenting and property orders made by a judge of the Family Court of Australia on 2 September 2019. The application for reinstatement is opposed by Ms Ahsan (“the respondent”) and the Independent Children's Lawyer (“ICL”).
The applicant filed a Notice of Appeal on 26 September 2019. The applicant failed to file a draft index to the appeal book as required, on or before 24 October 2019, and thus his appeal was deemed to be abandoned pursuant to r 22.13(2) and r 22.13(3) of the Family Law Rules 2004 (Cth) (“the Rules”). Nonetheless, the appeal may be reinstated pursuant to r 22.44 of the Rules.
The principles relating to an application for an extension for time, which have equal application to the reinstatement of an appeal, are set out in Gallo & Dawson (1990) 93 ALR 479 per McHugh J at 480–481:
…The grant of an extension of time under this rule is not automatic. The object of the rule is to ensure that those Rules which fix times for doing acts do not become instruments of injustice. The discretion to extend time is given for the sole purpose of enabling the court or justice to do justice between the parties: see Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VR 257 at 262. This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time: see Avery v No 2 Public Service Appeal Board [1973] 2 NZLR 86 at 92; Jess v Scott (1986) 12 FCR 187 at 194-5; 70 ALR 185. When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal: see Burns v Grigg [1967] VR 871 at 872; Hughes, at 263-4; Mitchelson v Mitchelson (1979) 24 ALR 522 at 524. It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has “a vested right to retain the judgment” unless the application is granted: Vilenius v Heinegar (1962) 36 ALJR 200 at 201. It follows that, before the applicant can succeed in this application, there must be material upon which I can be satisfied that to refuse the application would constitute an injustice…
The hearing of such an application, therefore, involves the exercise of discretion to enable the Court to do justice between the parties. The Court will exercise its discretion in favour of the applicant if it can be seen that strict compliance with the Rules will work an injustice. In undertaking that consideration, the Court will look to a number of factors, including whether or not there has been an appropriate explanation for not filing the draft index to the appeal book in time and the merits of the appeal.
As the applicant has exercised his right of appeal in a timely way, ordinarily, that right of appeal should not be lost due to a failure to comply with procedural rules (Jackamarra v Krakouer 195 CLR 516 (“Jackamarra v Krakouer”)).
If, however, the appeal entirely lacks merit, it would be futile to order a reinstatement of it (Jackamarra v Krakouer per Brennan CJ and McHugh J at 521). That would also work an injustice on the respondent to the appeal.

The default in filing the draft index to the appeal book

As to delay, the applicant relied on an affidavit sworn by him on 29 November 2019, in which he expressly abandoned reliance on an earlier affidavit sworn by him on 30 October 2019, which was filed and served along with his Application in the Appeal. I shall return to that affidavit shortly.
In the applicant’s affidavit sworn on 29 November 2019, the applicant says that he trusted his former solicitor to do all that was necessary to prosecute his appeal but that his former solicitor let him down by not filing the draft index to the appeal book as required. The applicant said:
9.The first I became aware of any problem was on or about 30 October 2019 where I was contacted by [former solicitor] who said to me: “[Mr Ahsan], we have a problem”. [Former solicitor] went on to say to me: “Your appeal is abandoned. Documents weren’t filed that were supposed to be. I will need you to file an affidavit”.
10.I then attended immediately upon [former solicitor’s] office and he informed me that his computer had been hacked, causing delays and an inability to file documents. He then informed me that I was required to sign an affidavit. I did not know at the time that [former solicitor] could or should have filed the affidavit himself as he had the personal knowledge of his office difficulties, whereas my knowledge came from him. I subsequently signed the affidavit provided to me by [former solicitor].
11.After attending at a conference with my current Senior Counsel … and [former solicitor], I immediately withdrew my instructions from [former solicitor] and I then instructed my current solicitors … to act on my behalf.
(Applicant’s affidavit sworn on 29 November 2019) (As per the original)
If this evidence is accepted, this would be a reasonable explanation for the delay because in the ordinary course, the Court does not visit the consequences of the procedural sins of a lawyer upon their client (Jess v Scott (1986) 12 FCR 187).
The respondent, however, submitted that this explanation should not be accepted. First, the respondent relies on the applicant’s affidavit sworn on 30 October 2019, which was tendered by her (Exhibit 1). It is submitted that the earlier explanation is inconsistent with the later one, which then should not be accepted.
In that affidavit (Exhibit 1), the applicant deposed to having a conversation with his former solicitor on 30 October 2019 from which he became aware that:
3.… [O]n or about 18 October 2019 the main computer at [former solicitors] was hacked causing loss of information which would have assisted him in finalising the draft Appeal Index.
(Exhibit 1)
The applicant does not say what information relevant to the preparation of the draft index to the appeal book was lost or why it could not be compiled from the paper file or by accessing the Court portal.
The applicant goes on to say:
4.I am now aware that [former solicitor] has resorted to use of a second computer which contained some of the lost Data but had to wait a few days before the IT technician could compile and retrieve such data from NAS drive.
(Exhibit 1)
Again, the nature of the lost data is not identified.
If this affidavit is accurate, there were a number of avenues available to the applicant’s former solicitor to acquire the fairly basic material needed to prepare a draft index to the appeal book. Much could have been gleaned from her Honour’s reasons and the balance from the Court portal or the paper file.
I do not, however, see that there is a stark inconsistency between the two affidavits. The earlier affidavit sworn on 30 October 2019, however, suggests that the delay was not the former solicitor’s fault but was due solely to his computer being hacked. As I observed, that is a far from complete explanation for the default in filing the draft index to the appeal book in time. It is easy enough to infer from that first affidavit, that which was made more explicit in the later affidavit, namely, that the draft index to the appeal book was not filed because of a lack of attention to it by the applicant’s former solicitor.
Secondly, the respondent pointed to the correspondence between the applicant’s former solicitor, the applicant and senior counsel for the applicant to suggest that the default was due to the applicant himself in some way. Certainly, there is some suggestion that there were delays in payment by the applicant of both his former solicitor and his senior counsel’s fees, but nothing in the correspondence suggests that this was the reason that the draft index to the appeal book was not filed. Indeed, the text messages that passed between the applicant’s former solicitor and the applicant suggest that the latter was, in fact, very keen to prosecute the appeal.
Finally, the respondent submitted that I should draw an adverse inference against the applicant for failing to call his former solicitor, and find that his evidence would not have assisted the applicant’s case.
If, as is suggested by the applicant, the default in filing the draft index to the appeal book was entirely due to the neglect of the applicant’s former solicitor, it is easy enough to envisage that the applicant may wish to pursue a claim against him for any losses that flow from that neglect. In those circumstances, it can easily be understood why the applicant did not call him.
It follows, therefore, that I accept the applicant’s explanation for the failure to file the draft index to the appeal book in time.
This application has been brought promptly.
The respondent submitted that the default in the timely filing of the draft index to the appeal book was far from an isolated event.
The applicant did not comply with orders made on 27 October 2017 and 26 April 2018 for the filing of trial affidavits. The trial was then listed for hearing on 29 October 2018 for five days.
On 25 October 2018, the matter was listed before the primary judge. As recorded by her Honour at [156], the applicant’s former solicitor appeared and sought leave to file a trial affidavit prior to the hearing. As no affidavit was then available or apparently had been drafted, leave was refused. The applicant did not subsequently seek leave to rely on any affidavit when the hearing commenced on 29 October 2018 and there is no suggestion that one had been prepared or was in the course of preparation. The applicant also refused the offer made by the respondent that the applicant be permitted to rely on an earlier affidavit filed by him.
The primary judge directed that the matter proceed on an “undefended basis”. I shall refer to the meaning of that word and the consequences of that direction shortly.
If, however, as appears to be the case, the present default was due to the neglect of the applicant’s former solicitor, then the attitude of the applicant towards the proper preparation of the trial does not carry significant weight.

The grounds of appeal

I turn now to the grounds of appeal.
The respondent submitted that the proposed grounds of appeal are weak and that I could take that weakness and weigh it in the balance, along with what was submitted to be a weak explanation for the default and the applicant’s poor attitude to the preparation of the trial, so that on balance, the application for reinstatement should be refused. I do not consider that such a course is open.
In Jackamarra v Krakouer at 520–521, Brennan CJ and McHugh J said:
Esther Investments Pty Ltd v Markalinga Pty Ltd, like the present case, was concerned with the failure to enter an appeal for hearing in accordance with O 63 r 7(1) of the Rules of the Supreme Court 1971 (WA). That sub-rule provides that “[u]nless the Full Court or a Judge otherwise orders, an appeal must be entered for hearing before the expiration of 12 weeks from the institution of the appeal”. Esther Investments, like the present case, was therefore concerned with a purely procedural application to extend time for doing an act in respect of an appeal already lodged. Yet the Full Court in Esther Investments approached the exercise of discretion as if it were dealing with an application to extend the time for lodging an appeal. Indeed, the four factors to which Malcolm CJ referred in this case come from the judgment of Kennedy J in Esther Investments which, as Kennedy J acknowledged, derived from the judgment of the English Court of Appeal in Palata Investments Ltd v Burt & Sinfield Ltd. But Palata was concerned with an application to extend the time for lodging an appeal against a judgment determining the substantive rights of the parties.
Cases such as Palata are therefore concerned with applications that seek to put at risk the substantive rights of the respondent. It is understandable that, where the applicant's right of appeal has gone, courts should insist, as they do, that the time for appealing will not be extended unless the proposed appeal has some prospects of success. But once an appeal has been lodged, different considerations apply. An appeal, honestly lodged by a suitor within time, “must be investigated and decided in the manner appointed”. If the appeal is frivolous, it can be disposed of summarily. If there is gross delay in prosecuting the appeal, it may be dismissed for want of prosecution. If it fails to comply with a particular rule, the rules of court may entitle the respondent to strike it out]. But the merits of the appeal are not a relevant consideration where the application concerns an extension of time for taking a step in prosecuting the appeal unless, unusually, the Court can be satisfied that the appeal is so devoid of merit that it would be futile to extend time. The merits are examined at the end of the process, not during its course. It would lead to strange consequences if consideration of the merits was a prerequisite for extending the time for each and every step in the conduct of the appeal, just as it would lead to strange consequences if consideration of the merits was a factor to be determined in considering extensions of time for every step in ordinary actions.
(Footnotes omitted)
In that passage, a distinction is drawn between an application for an extension of time where such a balancing exercise is permissible and an application for reinstatement where it is not.
In the latter case, the merits of the proposed appeal are relevant only if they are “so devoid of merit” as to render the appeal futile (Jackamarra v Krakouer at 521). In Jackamarra v Krakouer, Gummow and Hayne JJ made the same point at 528 and said that a person should not be denied his or her right to pursue an appeal properly filed unless it was clear that it would fail.
Ground 1 is in the following terms:
That her Honours erred in the conduct of the hearing, the finding that the trial was undefended (from paragraph 156 of the Judgment) and that the [applicant] had disengaged from the proceedings and the rulings made during the course of the trial collectively and individually caused the trial to miscarry. In particular, and without being exhaustive it is contended that her Honour erred in the following:-
i.In applying the available discretion under Rule 11.02;
ii.In finding that the proceedings were undefended in circumstances where:-
a.The [applicant] had filed a Response putting the orders sought in issue;
b.Permitting the [applicant] to give evidence but in limited respects only; and
c.In ruling at various places during the trial as to the [applicant’s] right to cross-examine that, “that will be the parameters of cross-examination: that it can be on her affidavit with respect to matters touching upon credibility and veracity. But it cannot be permitted to contain within it any positive evidence of the [applicant’s] case itself”. (T page 32 29.10.2018)
iii.Accepting the submissions of the [respondent] (at 159) that the proceedings should proceed on an undefended basis, “on the grounds that the [applicant] had failed to comply with trial directions… and had not proffered an explanation for this failure” and at this point failing to explain the [respondent’s] own failures (referred to later as to costs);
iv.Curtailing the cross-examination of the [applicant] in relation to property matters (paragraph 164); and
v.In the reasoning process that thereafter followed as to the [applicant’s] abilities to cross examine as to parenting issues relevantly failed to reach a conclusion (at 165);
vi.Making findings against the [applicant] in circumstances where his ability to participate in the trial were significantly curtailed such as to create an inherent unfairness to him; and
vii.Applying the findings as were then contaminated by such shortcomings to other evidence in the trial such as the evidence of the Single Expert whilst not permitting the [applicant] to fully participate in the trial;
(Notice of Appeal filed 26 September 2019) (As per the original)
As I have indicated, the primary judge directed that the hearing proceed on an “undefended basis”. It is not always clear what is meant by that phrase, but her Honour set out very clearly what she intended in the following paragraphs:
163.The Full Court in Tate & Tate (2000) FLC 93-047 recognises that the parameters of how an undefended hearing proceeds is a matter of discretion for the judge, which includes the discretion as to whether or not the excluded party be granted leave to cross-examine. The discretion of the court is to be tempered with regards to procedural fairness, natural justice and the requirement to do justice to all of the parties (Herold & Herold (2015) FLC 93-628).
164.Following some extensive interchange between the lawyers and the bench on the first day of the trial I indicated that the [applicant’s] lawyer would be permitted to cross-examine the [respondent] though the parameters of that cross-examination were curtailed in relation to property matters in particular as the [applicant] had disavowed reliance on any previous affidavit or Financial Statement.
165.In relation to parenting the [respondent’s] Counsel accepted that it would be appropriate to permit the [applicant’s] lawyer to cross examine the [respondent] on matters that may affect the assessment of her credibility. It was submitted on her behalf however that cross-examination by the [applicant] should not be permitted by reference to his own case which could only be inferred due to his failure to file an affidavit. To do otherwise it was submitted would give the [applicant] an unfair advantage when he had not complied with trial directions nor sought leave to rely upon an affidavit filed otherwise than in accordance with those directions. The [applicant’s] lawyer appeared to concede that this was the correct approach.
166.The trial then proceeded in the usual manner with the [respondent’s] case proceeding over the first two days.

It is not surprising that the ability for the applicant’s counsel to conduct the hearing would be curtailed by the absence of evidence from his client in support of his case. In any event, as is recorded by the primary judge (at [165]), the applicant’s counsel conceded that this curtailment was nonetheless the correct approach given the failure of the applicant to file his evidence. In the light of that concession, it is difficult for the applicant now to assert that her Honour erred in that approach.
The applicant had the benefit of counsel throughout the hearing before the primary judge. He was permitted to give evidence for the purpose of being cross-examined and to have witnesses important to his case also be cross-examined.
As I understand it, at no time in the hearing was an adjournment sought by the applicant, so as to adduce evidence in chief or to seek leave to file an affidavit. In that regard, it is worth noting that the hearing ran for seven days, from 29 October 2018 to 2 November 2018, 12 December 2018 and 5 February 2019. There was, thus, ample time for such an approach.
As I have said, the primary judge listed the matter on 25 October 2018. The hearing commenced four days later with no affidavit having been prepared and no application made to rely on one. Her Honour’s rulings of 25 October 2018 were, however, clearly interlocutory in nature and could have been re-visited at any time, including during the hearing and after its resumption, particularly if an affidavit had been prepared.
Ground 1, as drafted, proceeds on the assumption that the course adopted by her Honour was procedurally unfair, which meant that the applicant could not “fully participate in the trial”, creating an “inherent unfairness to him”.
The reason why the applicant had difficulties during the hearing was that he had not complied with directions to prepare his affidavit. That was something he brought on his own head.
In Tate & Tate (2000) FLC 93-047 at 87,709-87-710, the Full Court said:
The interlocutory orders made by the trial Judge by way of case management, were no less orders of the Court. There were entitled to full and punctilious obedience. This Court has a duty to order its business with justice according to law. The Rules of Court are there to assist in the fair and timely preparation of matters for expeditious trial. Litigants in such matters also have the duty of full and frank – and we would add prompt – disclosure of relevant financial matters. Against that background the trial Judge’s specific orders achieved an even greater potency. They did not have to be expressed as “unless” or “guillotine” orders: they were interlocutory orders of a judge of a superior court of record and to be obeyed as such according to their terms, which included specific times for performance.
It is not for litigants, appearing in person or otherwise, to pick and choose which orders they will or will not obey, or when they may condescend to comply with them. Such an attitude, amply evidenced in this matter, if adopted, brings its own nemesis. That is not only because it is contemptuous of the Court’s orders. It is also because it works injustice to the parties who do comply, and unfairness to that myriad of litigants waiting to have their matters despatched as soon as the Court can hear them. The luxury of procrastination – let alone deliberate disobedience – is a luxury of the past if it ever existed.
Ground 1 does not assert that the course adopted by her Honour was not one that was open to her. It also does not assert why it was erroneous for her to do so. As the applicant had not complied with an order of the Court for the preparation of the hearing, r 11.02 of the Rules applies. It provides that if a party does not comply with a procedural order, the Court may “determine the case as if it were undefended” (r 11.02(2)(c) of the Rules) or “make any other order the court considers necessary” (r 11.02(2)(g) of the Rules).
The Court is, thus, given a very wide discretion as to how proceed in such circumstances. In the present case, the applicant was permitted to proceed as any litigant could, save that he could not proceed on a basis inconsistent with his failure to adduce evidence. That, of course, was something he brought entirely upon himself.
It is to be recalled that there was evidence at the hearing from sources other than the respondent. For example, the Court had the benefit of a comprehensive report from an expert witness who had read a vast array of material in preparing that report. This expert was cross-examined by counsel for the applicant. Further, documents had been obtained in answer to subpoenas to which all parties had access.
As to the property aspect of the matter, the primary judge said:
409.The [applicant] has been aware for a number of years of the [respondent’s] contentions about his unilateral withdrawal of funds from joint accounts, unilateral sale of assets of the business (possibly at an undervalue), and placing the jointly owned company … into liquidation when it was in a healthy financial state. The effect of these actions has been to diminish the parties’ assets and to remove the company, a valuable jointly owned asset from the [respondent]. The [applicant] has also not disclosed the source of funds for payment of his legal fees without explanation. In summary, the [applicant] has failed at every level to provide the necessary level of financial disclosure to permit the [respondent] a full exploration of these matters and for the court to gain a proper understanding of the financial position of the parties.
In short, the applicant failed to comply with his obligations of disclosure, as well as Court orders for the timely preparation of his evidence. His predicament was self-inflicted.
Notwithstanding these failings, the primary judge fashioned a procedure that permitted the applicant maximum involvement with the proceedings, consistent with a person who had not filed any evidence. It is worth repeating that at no stage did the applicant seek to rely on a trial affidavit and refused the offer to rely on an earlier affidavit of his.
When asked to identify the error in the exercise of this discretion, senior counsel for the applicant said that:
·The applicant was not given a meaningful involvement in the hearing or his involvement in the hearing was illusory;
·No real reasons were given for the approach followed; and
·There was confusion as to how the matter was to proceed.
What I have written is sufficient to demonstrate that each of these propositions has no founding. Importantly, also, they do not identify error of the kind necessary to challenge the exercise of a judicial discretion (House & The King (1936) 55 CLR 499).
In short, Ground 1 proceeds on the basis that the course followed by the primary judge was procedurally unfair, without saying why this was so. It is not a satisfactory ground of appeal.
It is not for this Court to identify the appellant’s grounds of appeal. In Bahonko v Sterjov (2008) 166 FCR 415, the Full Court said:
3.Notwithstanding the obligation of an appeal court, where it is able to do so, to make its own evaluation of the material at first instance, it is a fundamental aspect of the appellate process that appeals are made available for the correction of error. This basic principle imposes an obligation upon an appellant to identify where error is to be found in a judgment under appeal, whether it be an error of fact, law or general principle. It is not necessary for an appeal court to hunt through all the material at first instance and recanvass every aspect of it unless an occasion arises for suspecting, on reasonable grounds (generally those provided by the appellant), that such an examination may yield a conclusion of appellable error.
(References omitted)
As accepted by senior counsel for the applicant, Grounds 2 and 4 are merely ancillary and are dependent on success in Ground 1.
Ground 3 provides “[t]hat her Honour erred in separating the “younger children” from the “elder children” and failed to provide adequate reasoning for such a drastic step in the Appellate sense”.
The parties have five children. The orders provide for the three eldest children to live with the applicant and for the two younger children to live with the respondent.
The first part of this ground, therefore, does not identify error. It is merely a complaint that the applicant does not agree with the orders and did not obtain the orders that he sought, which were that all five children live with him.
Thus, Ground 3 is only a valid ground insofar as it asserts an inadequacy of the reasons.
It is apparent from the primary judge’s reasons that her Honour took a different approach to the three elder children as opposed to the two younger children. This was to do, in part, with their ages and, in particular, their approach to each of their parents. This was an approach that was also taken by the expert report writer.
The relevant s 60CC of the Family Law Act 1975 (Cth) (“the Act”) considerations were discussed in these terms (see, by way of example only, at [233]–[242] as to s 60CC(2)(a) of the Act). Her Honour followed a similar course as to the remaining s 60 CC considerations throughout the remainder of her reasons, as is self-evident from reading them.
It is true that at [256], which was highlighted by senior counsel for the applicant, and the following paragraphs, the primary judge made findings that the children had been exposed to family violence perpetrated by the applicant. There was no submission that these findings were not in accordance with the evidence. The reference to these paragraphs in connection with this ground is therefore perplexing.
The above discussions led the primary judge to the following conclusions:
310.As is clear from the foregoing reasons I have no alternative other than to make the orders sought by the [applicant] and the ICL that the three older children live with the [applicant] and all parties’ proposal that these children spend time with the [respondent] in accordance with their wishes. I am not satisfied that these orders are in the best interests of these children having regard to the way in which they and their siblings have been abused in the [applicant’s] household by becoming alienated from [the respondent] and having regard to the other risk factors including the risk of exposure to family violence. However, these orders are the least detrimental to the children in the sense that the [respondent] effectively concedes that she would be unable to manage the five children together and does not seek an order that they live with her. It is also highly likely in my view that the oldest three children would all vote with their feet and return to the care of the [applicant] if orders were made that they live with the [respondent].
311.So far as the younger two children are concerned I must attach the greatest weight to the need to protect them from harm. Although there are some shortcomings in the [respondent’s] parenting capacity the relationship between her and those younger children appears to have been significantly restored since they have returned to live with her. Having regard to all the foregoing matters and in particular the various risks of harm posed by the [applicant] and the circumstances in his household I am satisfied that it is in the best interests of the two younger children to live with the [respondent].
These paragraphs make it plain why different orders were made for the two groups of children, and why her Honour thought that those orders were in their best interests. Her Honour’s reasons are replete with the discussion of the differences between the two groups of children and what orders should be made in the interests of each. I cannot see any basis on which it could be asserted that there is any want of reasons. It is quite plain why her Honour made the orders that she did and the reasons are therefore clearly adequate (Bennett and Bennett (1991) FLC 92-191 and Pollard & RRR Corporation Pty Ltd [2009] NSWCA 110).
Ground 5, which relates to the property settlement orders, presumes success in the appeal against the parenting orders. In the light of the above discussion, it can be put aside.
Ground 6 asserts that the primary judge erred in making a costs order but it does not say what the error is.
In the course of oral submissions, it was submitted that costs were a double penalty, in that the applicant was permitted to partake in the trial only in a limited capacity but was then nonetheless the subject of a costs order, and the primary judge had no regard to s 117(2A) of the Act.
I do not see any inconsistency in the first proposition. Regardless of the nature of the applicant’s participation in the proceedings, costs were, or were not, appropriate in all of the circumstances. I do not see that this issue bears on Ground 6 at all. The second proposition is simply wrong (at [425]–[442]).
As I have said, the Court is entitled to have regard to the grounds of appeal as drafted. No proposed amended Notice of Appeal was relied on in this application. The applicant has had the benefit of senior counsel advising him on the appeal since a very short time after judgment was delivered, as is evidenced from the correspondence that is in evidence. It may be safely inferred, therefore, that the present grounds of appeal are the best that can be drafted.
When regard is had to these grounds of appeal and the arguments in support of them advanced on this application for reinstatement, I am quite unable to identify any error asserted by them, let alone any arguable error in the exercise of the primary judge’s discretion as to how the matter should have proceeded or in her Honour’s reasons.

Conclusion

It follows that I am satisfied that it is clear that the appeal as framed must fail and that it is “so devoid of merit that it would be futile to extend time” (Jackamarra v Krakouer at 521). To do so would foist an injustice upon the respondent who would have to go to the trouble and expense of opposing a meritless appeal.
The Application in an Appeal filed on 31 October 2019 is dismissed.

I certify that the preceding sixty-eight (68) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Aldridge delivered on 11 December 2019.

Associate:

Date: 19 December 2019